The Grand Chamber of the Supreme Court notes that
Posted: Wed Jun 18, 2025 3:44 am
In justifying the above conclusion,
"otherwise, the goal of Law No. 922-VIII, which is to ensure effective and transparent procurement, create a competitive environment in the field of public procurement, prevent corruption in this area, and develop fair competition, is not achieved, since sellers, in order to win, may offer a price for the goods during the procurement procedure that is lower than the market price, and subsequently, after concluding a procurement contract, demand an increase in this price, citing fluctuations in the price of such goods on the market."
Thus, the Court's interpretation of the norm was based on the assumption that a special database contrary interpretation of the norm would lead to sellers abusing their rights by artificially lowering the price of the goods in order to win the procurement.
However, firstly, the doctrine of modern national law does not allow the interpretation of the norm by modeling the hypothetical actions of subjects whose behavior should be regulated by the specified norm, and secondly, the legislation on public procurement provides for appropriate safeguards against the commission of such unfair actions by sellers.
The Court then resorts to a historical interpretation of the provisions of paragraph 2 of part five of Article 41 of Law No. 922-VIII and notes:
"In this Law, as amended before April 19, 2020, the provision of paragraph 2 of part five of Article 41 was set out in Article 36 and had the following content: "The essential terms of the procurement contract may not be changed after its signing until the parties have fulfilled their obligations in full, except in the case of a change in the price per unit of goods by no more than 10 percent in the event of fluctuations in the price of such goods on the market, provided that the specified change does not lead to an increase in the amount specified in the contract."
"otherwise, the goal of Law No. 922-VIII, which is to ensure effective and transparent procurement, create a competitive environment in the field of public procurement, prevent corruption in this area, and develop fair competition, is not achieved, since sellers, in order to win, may offer a price for the goods during the procurement procedure that is lower than the market price, and subsequently, after concluding a procurement contract, demand an increase in this price, citing fluctuations in the price of such goods on the market."
Thus, the Court's interpretation of the norm was based on the assumption that a special database contrary interpretation of the norm would lead to sellers abusing their rights by artificially lowering the price of the goods in order to win the procurement.
However, firstly, the doctrine of modern national law does not allow the interpretation of the norm by modeling the hypothetical actions of subjects whose behavior should be regulated by the specified norm, and secondly, the legislation on public procurement provides for appropriate safeguards against the commission of such unfair actions by sellers.
The Court then resorts to a historical interpretation of the provisions of paragraph 2 of part five of Article 41 of Law No. 922-VIII and notes:
"In this Law, as amended before April 19, 2020, the provision of paragraph 2 of part five of Article 41 was set out in Article 36 and had the following content: "The essential terms of the procurement contract may not be changed after its signing until the parties have fulfilled their obligations in full, except in the case of a change in the price per unit of goods by no more than 10 percent in the event of fluctuations in the price of such goods on the market, provided that the specified change does not lead to an increase in the amount specified in the contract."